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While the global coronavirus pandemic has diverted attention away from the fraught issue of climate change and what to do about it, the environmental activism of groups such as Extinction Rebellion (XR) has continued to simmer. In fact, this year XR has blended with the Black Lives Matter (BLM) movement such that explicitly anti-capitalist environmental protest and anti-patriarchal, anti-colonial wokery have become intimately entwined. The underlying message is: If you want to save the planet you have to change the system. In practice, all protest movements have many threads – just look at the two-year campaign of the gilets jaunes in France – but the unifying thread is always resentment.

The irony is that both aspects of this counterculture are out-of-date. Rapid advances in technology, facilitated by the free market, have transformed the climate conversation. Whatever Mr Trump’s rhetoric on the issue (and he may well be in the departure lounge by the time you read this), the big energy companies, backed by a raft of environmentally conscious investors, are already transitioning towards renewable and zero-fossil fuel energy precisely because it is now economically viable to do so. And in that process, they are making money. Win-win.

Developing nations regard IPR as an inherent barrier to the international transfer of, and affordable access to, clean technologies in a rapid time frame.[96] According to this view, IPR of clean technologies keeps prices of clean technologies high and limits access. Developing nations have pointed to specific instances to support this view. For example, firms and R&D institutions in developing nations have indicated that commercial firms and public institutions in developed nations refused to license important technologies related to fuel-cells.[97] Local firms in India indicated that they were refused licenses for patented technologies on ozone reduction.[98] Several developing nations have also criticized a small group of multinational companies “MNC”s) owning clean technologies needed by developing nations. These MNCs were criticized for using their ownership of clean technologies as a means to control production, therefore limiting their transfer to the developing nations who needed these clean technologies.[99]

During recent UNFCCC climate change conferences, developing nations suggested limiting or eliminating IPR for clean technologies. Specifically, Brazil, South Africa, China, India, and Russia have suggested rethinking the existing IPR regime, excluding clean technologies from patent protections, introducing a compulsory licensing scheme for clean technologies, and pushing for technology transfer, flexible licensing mechanisms, and institutional mechanisms.[100] The president of Bolivia likewise commanded that “innovation and technology related to climate change must be within the public domain, not under any private monopolistic patent regime that obstructs and makes technology transfer more expensive to developing countries.”[101]

Uptake and use of material from the public domain is similar to the phenomenon of user-led innovation, in which end consumers adapt and modify products, later sharing them with each other and with producing firms. In as much as enterprises are able to successfully capture value from the user innovation process, these activities are similar to using inspiration and material from the public domain to create new products. Limited empirical evidence from the software industry suggests that some companies that normally enjoy exclusive copyright in their products are beginning to promote user innovation as part of their business strategy, finding benefits in the practice (Haefliger et al., 2010). Such benefits might include community reputation as well as added utility from new users of a product due to network effects. The presence of private benefits combined with the low cost of widely disseminating details of an innovation has led to a reassessment of the “free riding” problem in user communities. If the cost of freely revealing is lower than the expected private benefit of doing so, researchers Eric von Hippel and Georg von Krogh suggest that participants are likely to engage in a “private-collective” model of innovation. Firms in our study exploited public domain inputs for many of the same reasons that user-innovators engage in private-collective innovation. In particular, they often bundled their public domain products with other complementary goods in order to appropriate the value associated with their own innovation practice. Managers also reported lower costs associated with using public domain materials as an incentive. Incorporating free and open-source inputs early in a new product helped some developers to “fulfill the credible promise” of a prototype, stimulating further contributions and investment. Some respondents actively engaged with communities of users, for example, fans of Sherlock Holmes or H.P. Lovecraft, to develop new adaptations of those public domain works. The openness of such works to collective remixing led to more innovative and more radically collaborative products.

A patentee does not need to demonstrate infringement to extract a license from a startup. Rather, the patent owner needs only to raise a colorable claim of infringement. This is because any lawsuit has the potential to divert the startup's transaction costs to litigation defense, rather than research and development. These costs are significant, as patent trial costs average $1.6 million for cases with less than $25 million in dispute, and a mean of $3.5 million for the valuation of harm is higher.199 These costs are not symmetrical, as the cost to defend and attempt to invalidate a patent are far greater than those necessary to assert a patent.200 A rational startup would pay a licensing fee solely to avoid this massive financial drain, even if the asserted patent appears invalid on its face.201 With the largest share of transaction costs, the startup has an incentive to capitulate despite the fact that infringement of a valid patent had never been proven.

New solutions can incorporate public domain information that was once claimed in patents that have now expired, or for which patent protection was never sought. Not all patentable information is, in fact, patented. Firms decline to patent in favor of keeping certain inventions secret, or have determined that some are not worth the financial cost of patenting. As one example, in 1976 General Electric engineers invented the compact fluorescent bulb in 1976, the spiral- shaped bulb that is now widely sold as an energy-saving device.136 When first invented, the company decided that commercialization of the spiral-shaped bulbs was cost prohibitive, and so shelved the project without filing for patent protection.137 In other instances, companies rely on alternative mechanisms, including first-to-market advantages, sales and service efforts, or a faster move up the learning curve, to establish leadership rather than patents.138 Moreover, a significant share of startups cannot afford to patent.139 One study found that only ten percent (10%) of approximately 3,000 identified major advances in various fields had been patented.140 Although the results of this study cannot readily be generalized to all types of research and development, this data underscores that many valuable solutions are in the public domain.

One source suggests reasons that certain fields demonstrate increased creativity in the aggregate from the minimal assertion of intellectual property rights.116 Citing the early development of the software industry, Professors Bessen and Maskin argue that the industries that benefit most from this circumstance experience technological growth in a manner characterized by two essential features. 117 The first feature is that the development of products is sequential, meaning that each successive invention builds on the preceding one; and second development is complementary, meaning that each potential innovator creates a differentiated approach to the product's design.118 In such instances, they conclude, "[i]mitation becomes a spur to innovation, whereas strong patents become an impediment."119 These scholars make a compelling case. Still, nearly all forms of technological fields are characterized by sequential innovation and differentiated product development.120 The results from the experiment may prove to be more profound, with implications for all technological fields. It is not clear whether the software industry's development is characterized by alternative features, such as low barriers to entry or a short development cycle, that when unimpeded by patents allows for quick growth. Data gathered from an anti-patent program could be used to identify such features.

In an ideal world, the legal system's impact on creativity should be no greater than necessary to accomplish the law's goals. Yet some of the cited literature suggests that certain weaknesses in the patent system are being exploited to the detriment of future innovation. With some notable exceptions, many high-technology companies that developed key technologies had very few patents during their earliest years.100

The experience of some companies demonstrates that patents are not vital in a company's early years to achieve success. During its first decade, Cisco Systems grew into a billion dollar company and had filed for only one patent.101 Significantly, according to one insider, “This growth was obviously not fuelled by patents, it was fuelled by competition and by open, nonproprietary interfaces.”102 During its second decade, Cisco began to gradually increase its filings.103 By 2006, Cisco held over 2,500 issued US patents and had applied for over 4,000 more.104 Cisco engaged in this activity to establish a defensive patent portfolio.105

This cost imposes significant burdens on small companies. Smaller firms avoid research and development in areas where a threat of a patent lawsuit from a larger firm exists.164 These circumstances can lead to reduced competition and consumer choice.165 Small firms suffer additional disadvantages in patent litigation when compared to larger, more established firms.166 Because such firms typically own few patents, early settlement of the allegations through a non- monetary cross-license is not an option in many cases.167 Additionally, small firms rarely have a large portfolio of patents to assert against others, reducing the possibility that such firms can be used to lay a foundation for settlement and cooperation.168 According to the Chien survey, the "significant operation impact" falls hardest on smaller entities--that is, "the smaller the company, the more likely it was to report a significant operational impact," and "small companies [are] targeted more as unique defendants, and paying more in time, money and operational impact, relative to their size, than large firms.169

This same study recognized startups cannot raise funds to fight a patent lawsuit, and that some small firms “can go out of business over these kinds of suits.”170 One interviewee noted that the company’s founder had “lost his house, car [and] all his assets.”171 Another observed that patentees have an incentive to assert patents against small entities, because such entities are more likely to settle for a higher royalty rate to avoid the high transaction costs of patent litigation, to “feed the war chest” for suits against larger players, and to establish a high royalty rate for the patent.172 One firm acknowledged that it no longer develops products for the U.S. market, due to the risk of patent litigation.173

Non-practicing entities present another difficulty.219 Seeking to obtain the highest possible royalties, the preferred strategy is to hold a group of patents, wait until the market chooses the winners, and then sue for infringement.220 Producing patentees that in the same market present another source of patent assertion. For example, former camera maker Kodak asserted digital camera patents against Apple's iPhone.221 Kodak's patents claim a component feature of the iPhone, which allows users to digitally preview images prior to taking a picture with the iPhone's camera.222 Similarly, Oracle, an information technology company, asserted software patents against Google's Android platform.223 Oracle sought billions in damages.224 Indeed, it has been estimated that $120 of every smartphone sold goes to paying patent royalties, and that this figure equals or exceeds the costs of the physical components.225

The patent system's structure establishes a right to exclude for all patent holders. Patents are asserted in a manner akin to a res, a legal right based on a subject matter that can be asserted against the world. No proof of copying is required. The assertion of the right operates as a strict liability tort, and therefore no knowledge of the patent is required before liability attaches. It has been theorized that first inventors who cannot enforce their rights against improvers would lack appropriate incentives to perform original research and "stymie the entire line of technology."208

A startup's products can implicate the patent rights of more than one patent holder. Attempting to obtain clearance cannot be assured, because patent holders have no obligation to license and typically do not license patents obtained to protect their core products.209 If the patentee is willing to negotiate, a license is not assured because the parties may be unable to agree on price. As one scholar observed, “To produce the finished commercial product requires a license to every one of those hundreds or thousands of patents. If the producer misses even a single patent and does not procure a license ahead of time, then it faces the possibility of being held up later.”210

AI & IP Policy: Regulating Disruptive Innovation. Intellectual property law has become the new battleground for ideas on how societies should deal with transformative change caused by disruptive tech.219 While trying to fill legislative gaps when laws cannot keep up with the pace of innovation, lawyers are becoming the policy makers. In this context, this section presents ten thoughts and policy suggestions on social, inclusive and innovation-friendly AI and data regulation.220 I start with a short legal policy vision of the direction I feel we should take. AI & IP for Dummies More or less protection for the owner of IP rights each has both advantages and disadvantages. More protection could stimulate costly and labor-intensive innova- tion, because that protection is offered as a reward. But the opposite, open access, also has social benefits. The degree of IP protection is therefore based on a consid- eration of pros and cons, and thus has a legal-political character. IP law policy aims to implement a regime that strikes a balance between un- derprotection and overprotection of IP rights—a regime that searches for an innova- tion optimum. That this is not an easy task as illustrated by IP history, which shows a pendulum swinging between underprotection and overprotection.221 Right now, we are in a stage of overprotection.222 In other words, intellectual property rights are getting too stretched. Besides that, IP law is poorly structured. This is not good because disruptive technologies such as AI, blockchain, and big data require a balanced, innovation-friendly regime. Solutions to resolve nega- tive effects that overprotection has are available. These include, on the one hand, technology-neutral open standards and exceptions or limitations such as the Ameri- can fair use principle, which allow more breathing room for both consumers and online platforms; and on the other hand, the introduction of an articulated public domain for AI Creations and Inventions (Res Publicae ex Machina). In general, we need more flexible IP laws and more open access. IP overprotection leads to market barriers for start-ups and SME’s and hinders international trade. When expressing preference for open access, AI & IP policy makers should ask themselves 2 questions: 1. To what extent can the assessment of the magnitude of the advantages and disadvantages of more open access versus more layers of IP rights be substantiated? This could, inter alia, be substantiated by sector specific empirical research. 2. And how and why do I weigh the pros and cons of this substantiation, and thus arrive at a preference for more open access? The goal should be at least a Pareto optimum/equilibrium, and preferably a Pa- reto improvement. B. 10 AI Related Policy Suggestions First of all, in order to have a sensible short-to-medium-term policy discussion about IP law in the context of emerging tech, it is important to demystify AI, resist anthropomorphisation and avoid speculation about the distant future. The state of the art is that we do not have Strong or General AI yet. What we have today is weak, pattern-based AI that is reaching task specific performance.223 It is a suite of tools that can be used for computer deductive reasoning and machine learning. Second, the unchartered terrain of IP and AI law makes it possible for legisla- tors to harmonize the acquis for AI internationally. For example, this can be done by introducing an official PD mark for AI Creations and Inventions (Res Publicae ex Machina). A harmonized, global acquis prevents forum shopping to countries such as the UK, Australia, and Japan and promotes legal certainty. It is vital that countries stop stretching IP rights at the expense of public domain and fundamental rights such as the right to information that are enshrined in the EU Charter and the USA Constitution. Third, AI related IP law policy should recognize the social value of disruptive technology and resist protecting settled market players who benefit from the status quo.224 IP law should not create barriers for new market entrants.

A. The Societal Effect of Propertization and Fragmentation of Intellectual Property Rights

1. Fragmentation of the Public Domain

Despite these pressures and the best efforts of all involved, the first commercialization of a new idea can take years.60 Along the way, the process from idea to commercialization is iterative and riddled with setbacks, pivots, and deviations.61 As one study observed, in the early stages of a new product type the "process by which the technology is scaled from pilot to commercial production creates opportunities to learn by building."62 There is no set time-to-market because there is a widely variable relationship between the amount of resources that a startup uses, the complexity of the product and the time necessary to complete the commercialized product. All else being equal, the more time and funding that the startup possesses, the faster the startup can get to market. Further, the first version of a commercial product might be far from perfect, and improvements may be necessary. Marketing to obtain a critical mass of customers can extend the time that the startup collects its initial revenues even further. Events that detract from this drive to market, including the multi-million dollar drain of patent litigation, can stymie the startup's viability.63

The commercialization of the Nest thermostat provides as a brief illustration of the distinction between ideas, inventions, and commercialization, as well as the impact of funding on time to market. This device started as the idea of Tony Fadell, an experienced, former Apple designer who has been called the "godfather of the iPod." 64 While designing a home in 2009, Fadell began to explore ideas for a smart, energy saving thermostat after considering the low-tech designs that were available then on the market.65 He discussed his concept with a colleague in Fall 2009, who agreed to form Nest with Fadell.66 In the middle of 2010, the company was founded.67 In September of that year, Nest received its first round of venture funding.68 While he sought this funding, Fadell did not present prospective investors with a working prototype, but instead based on a crude Styrofoam model and a business plan in a slide deck.69 Based solely on this information, it might appear that at this juncture Faddel's idea had not yet materialized into an invention before September 2010. However, on September 14, 2010, Nest filed patent applications demonstrating that the startup's concept had indeed ripened into an invention as of that date.70

This article proposes a voluntary opt-out system for emerging companies. Unlike a patent right to exclude, this proposal is for an anti-patent, which has the opposite purpose. Essentially, an anti-patent allows the owner to opt out of the patent system for a limited twenty-year term. This program includes two fundamental components. First, approved participants will obtain qualified immunity from all third party patent infringement assertions. During the immunity time period, a startup in the program will not acquire any liability for non-willful infringement of any patents. The entity can participate in permissionless invention and innovation—that is, the startup can experiment, invent, develop, and commercialize a product without any obligation to pay patent license fees or to respond to infringement allegations by patent holders. Secondly, as a true opt-out program, the entity must forgo obtaining any patents for all inventions developed during that time. The work performed by the entity during this time passes to the public domain.

Congress has the ability to create statutory immunity to insulate a person or entity against liability for patent infringement.40 As with other types of legal immunities, no liability inures to a startup that has a granted anti-patent. This program proposes a broad scope of immunity that protects the startup from all assertions of patent infringement for all work performed by that entity during the term. Thus, the immunity prevents lawsuits from those asserting patent claims that cover all, or any aspect, of the startup’s activity. This includes patents that read on the startup’s entire product and processes, as well any portion of either, and subsequent projects. The immunity applies to all theories encompassed by direct and indirect infringement, and applies to products and processes that are in development, as well as those that are commercially available. As a practical matter, the anti-patent eliminates any expense or uncertainty for a license, litigation, or court-imposed remedy.

Identifying inherent fraud risks affecting the program. The USPTO has taken steps to identify inherent fraud risks from the universe of potential vulnerabilities facing the trademark register, including threats from various sources. USPTO officials described two different types of fraud schemes in the trademark system: filing mills and criminal groups. Filing mills are a common scheme in which companies file thousands of trademark applications, without any actual use, to receive trademark registrations that can subsequently be resold for a profit to those seeking access to the U.S market on ecommerce websites. Another common scheme involves criminal groups posing as the USPTO to fraudulently request money from trademark owners or steal client account information. According to USPTO officials, most of the agency’s current fraud monitoring activities are ad hoc and include monitoring internal sources like the TMscams@USPTO.gov inbox, where applicants, registrants, and attorneys that have encountered potentially fraudulent behavior can submit complaints to the agency, and external sources like trade publications such as the World Trademark Review. Agency officials said that the high volume of trademark applications and constantly changing fraud schemes make assessing fraud risks to the trademark register difficult, especially with limited resources.

A world dominated by totalitarian states would be more incompetent, more war-prone, less cooperative, and more inhibitive of progress than one dominated by democratic states. Our current world is not particularly competent, peaceful, cooperative, or progressive—a totalitarian-dominated world would be worse. It would increase the risk of another collapse and extinction and could shape the future toward less desirable trajectories (Beckstead, 2013). Totalitarian states are incompetent. They are bad at forecasting and dealing with disasters (Caplan, 2008).16 This can be seen most clearly in the great famines of Communist China and the USSR, in which millions died (Applebaum, 2017; Becker, 1996; Dikotter, 2010; Snyder, 2010). In comparison, functioning multiparty democracies rarely, if ever, experience famines (Sen, 2010). “Established autocracies” (or “personal”/“sultanist”) are particularly bad, as there are few checks or restraints on arbitrary rule and the whims and ideology of the single individual, even from other elites (Svolik, 2012). From the inside, the “inner circle” around Mao, Stalin, and Hitler seems incredibly chaotic, with elites strongly incentivized to conceal information and encouraged by the autocrat to squabble and feud—so they are divided (Conquest, 1992; Kershaw, 2008; Zhang & Halliday, 2006). If totalitarian states are worse at addressing social, environmental, and technological problems, then a world dominated by them would likely be worse at responding to risks of collapse and extinction. A world dominated by totalitarian states is more likely to have major wars. States with near-universal adult suffrage rarely (if ever) go to war with one another (Barnhart et al., 2020), so a world dominated by democracies has fewer wars. Miscalculation might be a particular problem for totalitarian states due to personalization and disincentives for accurate information, leading to well-known strategic disasters such as Hitler and Stalin’s blunders in World War II (Bialer, 1970; Noakes & Pridham, 2001), or at a smaller level, Saddam Hussein’s rejection of diplomacy (Atkinson, 1993). War makes collapse and extinction more likely, by raising the chance of weapons of mass destruction being used. Linked to this, totalitarian states are less cooperative than democratic states. While cooperation is possible (Ginsburg, 2020), their internal norms are characterized by paranoia and treachery, and their lack of transparency limits their ability to credibly commit to agreements. This is bad for all risks that require cooperation such as pandemics or climate change (Tomasik, 2015). Finally, continued social and scientific progress is likely to reduce risks of collapse and extinction. Social progress could reduce global inequality and other risk factors. Scientific progress could help address natural risks and climate change (Sandberg, 2018), differentially increase defensive rather than offensive power (Garfinkel & Dafoe, 2019), and solve safety challenges in AI or biotechnology (Russell, 2019). However, as we will now discuss totalitarian states would likely inhibit social progress. A central question from a longtermist perspective is: Which values should shape the future? I would argue that we should prefer it to be shaped by liberal democratic values. This is not to say that the current democracy-dominated world is perfect—far from it. The fate of billions of factory-farmed animals or hundreds of millions of people in extreme poverty makes that abundantly clear. However, democracies have two advantages. First, democracies have space for cosmopolitan values such as human rights, plurality, freedom, and equality. These are better than those that characterize life under totalitarianism: Fear, terror, subjection, and secrecy. Second, they have within themselves the mechanism to allow progress. In the last 100 (or even 50) years, the lives of women, LGBT people, religious minorities, and non-white people have dramatically improved. Our “moral circle” has expanded, and could continue to expand (Singer, 1981). The arc of the moral universe is long, but given the right conditions, it might just bend toward justice (King, 1968). A global society dominated by these values, and with the possibility of improving more, has a better longterm potential. A totalitarian-dominated world, on the other hand, would reduce the space for resistance and progress—distorting the human trajectory. We should be particularly concerned about “bottlenecks” at which values are particularly important—where there is a risk of “locking-in” some particular set of (possibly far from optimal) values. While they are currently far-off, future technologies such as artificial general intelligence, space settlement, life extension (of autocrats), or much better surveillance could enable lock-in (Caplan, 2008).17 Conditional on them avoiding new catastrophes, world orders dominated by totalitarians could be quite long-lasting (Caplan, 2008). Democracies can undermine authoritarian and totalitarian regimes through the following ways: Control, including conquest; contagion through proximity; and consent, promoting receptivity toward democratization (Whitehead, 2001). Democracies can actively undermine these regimes through war, sanctions, hosting rebellious exiles, or sponsoring internal movements. Passively, through contagion, they offer a demonstration that a better, more prosperous life is possible. For example, in the final years of the USSR, ordinary Soviet citizens were able to see that the West had a higher standard of living—more innovation, more choice, and more consumer goods. The elites were able to read books from the outside, and travel—Gorbachev’s contacts and friendships with European politicians may have made him more favorable to social democracy (Brown, 1996). Democracies can undermine the will and capacity of the coercive apparatus (Bellin, 2004). However, in a world not dominated by democracies, all these pressures would be far less. A world in which, say, totalitarian regimes emerged as dominant after World War II (for example if the USA was defeated) could be self-reinforcing and long-lasting, like the self-reinforcing relationship of Oceania, Eurasia, and Eastasia (Orwell, 1949). Orwell’s fictional world is characterized by constant low-grade warfare to justify emergency powers and secure elites, and with shifting alliances of convenience as states bandwagon and balance, thereby preventing any resolution. A totalitarian-dominated world order could be rather robust, perhaps for decades or even centuries. A long-lasting totalitarian-dominated world would extend the period of time humanity would spend with a heightened risk of collapse or extinction, as well as increased potential for distortion of the human trajectory and the possibility that a “lock-in” event may occur. This example illustrates the possibility of a “negative recovery,” resulting in a trajectory with less or no scientific and social progress and a less favorable geopolitical situation, which would threaten the destruction of humanity’s longterm potential.

The law of Trademark Protection was developed to grant exclusive proprietary right to Trademark owners, the monopoly of the Trademark owners over their trademarks and safeguard the collective goodwill. In a nutshell, Trademark Protection originated to restrain the sale of counterfeit products under an existing reputed brand name, but what happens when the same owners who are protected go above and beyond their legal capacity to protect their mark? The exact term for such an act is “Trademark bullying”.

Off late it has become a persistent problem with big companies, whereby they try to strong-arm small enterprises for business gains. Proprietors having high stakes go out of their way to protect their marks, even though the target entities do not use marks that are remotely similar to theirs. When a proprietor becomes an aggressive protector of his Trademark, lines between actual infringement and absurd contestations blur. To understand whether the same is bullying or an actual trademark infringement we will have to understand what constitutes bullying and the subtle difference between infringement and trademark bullying.

The idea is simple: capture and concentrate CO₂ before it’s released to the air and store it deep underground where it can’t escape. Instead of adding to the climate crisis, carbon capture and storage could turn power plants and factories into CO₂-sucking behemoths, filling underground reservoirs that otherwise held fossil fuels or salty water.

The world’s first dedicated CCS project, Sleipner (in the Norwegian North Sea), started injecting CO₂ into underground reservoirs in 1996. Since then, it has successfully stored more than 20 million tonnes (Mt). That might sound impressive, but it’s nowhere near enough. The International Energy Agency recommends that 21,400 Mt of CO₂ should be captured and stored by 2030 to limit global warming to 2°C. But, by the end of 2017, only 442 Mt had been injected and stored.

https://www.sandiegouniontribune.com/opinion/commentary/story/2024-03-13/carbon-capture-research-climate-emergency-ucsd-usd

As someone deeply concerned about the state of our planet and the urgent need to address climate change, I’ve been closely following the development of carbon capture technologies. For me, this mission is deeply personal. Growing up in Jamaica, I witnessed firsthand how the abundance of wind and solar resources remained largely underutilized for renewable energy generation and the impact that climate change has had on beach erosion and sea level rise. These impacts are similar to what we are seeing here in the San Diego region where coastal landslides and cliff collapses threaten beach recreational activities and the rail corridor from San Diego to Los Angeles.

Thus, significant legal reforms that include a combination of financial incentives, mandates, and other forms of government support are needed to drive full-scale diffusion of CCS technology in the United States. This Article recommends a variety of legal reforms to expand CCS deployment on coal-fired and NGCC plants in line with DDPP projections. The recommended reforms would not only require the use of CCS at coal-fired and NGCC plants, but would also facilitate the sale of and help create markets for the higher-cost electricity generated by plants equipped with CCS, and would provide substantial investment in CCS and its associated infrastructure.

Assuming the continued absence of federal legislation that imposes a national cap or price on carbon dioxide emissions, this Article suggests: (1) issuance of presidential and gubernatorial Executive Orders to create federal and state markets for purchase of power generated by CCS equipped power plants; (2) enactment of federal and state legislation to provide financial incentives to spur capture of carbon dioxide; (3) tightening of federal and state regulatory requirements for new and existing sources to directly or indirectly require widespread use of CCS; (4) action by federal and state actors to streamline permitting and improve interagency coordination; (5) expansion of public-private partnerships to build out the existing pipeline infrastructure (perhaps providing eminent domain authority to install the pipelines needed to transport captured carbon dioxide from early adopters of CCS to the proposed federal sequestration sites); and (6) use of federal funds to build and operate several sequestration facilities on federally owned lands located near existing or proposed large sources of captured carbon dioxide with the federal government retaining the long-term liability associated with permanent sequestration of the captured carbon dioxide.